Citation Nr: 0301810
Decision Date: 01/30/03 Archive Date: 02/07/03
DOCKET NO. 02-03 898 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Associate Counsel
INTRODUCTION
The veteran had active service from April 1946 to October
1947.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an August 2000 rating decision of
the Department of Veterans Affairs (VA) Regional Office in
Waco, Texas (RO) which denied the benefits sought on appeal.
FINDINGS OF FACT
1. The veteran was notified of the evidence needed to
substantiate his claims, and all relevant evidence necessary
for an equitable disposition of this appeal has been
obtained.
2. There is no medical evidence of bilateral hearing loss,
which is causally or etiologically related to the veteran's
active service.
3. There is no medical evidence of bilateral tinnitus, which
is causally or etiologically related to the veteran's active
service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was neither incurred nor
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131, 1153, 5103A, 5107(b), 5108 (West 1991 & Supp. 2002); 66
Fed. Reg. 45,630-32 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102, 3.159); 38 C.F.R. §§ 3.102,
3.303, 3.304, 3.306, 3.385 (2002).
2. Bilateral tinnitus was neither incurred in nor aggravated
by active military service. 38 U.S.C.A. §§ 1131, 5103A,
5107(b) (West 1991 & Supp. 2001); 66 Fed. Reg. 45,630-32
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R.
§§ 3.102, 3.159); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306
(2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As a preliminary matter, in November 2000, the Veterans
Claims Assistance Act of 2000 (VCAA) became law. The VCAA
applies to all claims for VA benefits and provides, among
other things, that VA shall make reasonable efforts to notify
a claimant of the evidence necessary to substantiate a claim
for benefits under laws administered by VA. The VCAA also
requires VA to assist a claimant in obtaining that evidence.
See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002); 66 Fed.
Reg. 45,630 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.159).
First, VA has a duty under the VCAA to notify the veteran and
his representative of any information and evidence needed to
substantiate and complete his claims. The rating decision
and the statement of the case issued in connection with the
veteran's appeal, as well as additional correspondence to the
veteran, have notified him of the evidence considered, the
pertinent laws and regulations, and the reason that his
claims were denied. The RO indicated that it would review
the information of record and determine what additional
information is needed to process the veteran's claims. The
RO also informed the veteran of what the evidence must show
in order to warrant reopening his claims and in order to
grant service connection, as well as provided a detailed
explanation of why the requested benefits were not granted.
In addition, the statement of the case included the criteria
for reopening a claim and for granting service connection, as
well as other regulations pertaining to his claim.
Similarly, letters to the veteran, from the RO, notified the
veteran as to what kind of information was needed from him,
and what he could do to help his claim. See Quartuccio v.
Principi, 16 Vet. App. 183,187 (2002) (requiring VA to
notify the veteran of what evidence he was required to
provide and what evidence VA would attempt to obtain).
Accordingly, the Board finds that the notification
requirements of the VCAA have been satisfied.
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate his claim. In this
regard, the veteran's service medical records have been
obtained. The Board notes that the RO informed the veteran
that he must submit evidence showing that he had the claimed
disorders and a relationship to service, including the
veteran's treatment history. However, the veteran failed to
submit any information. See Wood v. Derwinski, 1 Vet. App.
190, 193 (1991) ("The duty to assist is not always a one-way
street. If a veteran wants help, he cannot passively wait
for it in those circumstances where he may or should have
information that is essential in obtaining the putative
evidence."). The veteran and his representative have not
made the Board aware of any additional evidence that should
be obtained prior to appellate review, and the Board is
satisfied that the requirements under the VCAA have been met.
As such, the Board finds that the duty to assist has been
satisfied and the case is ready for appellate review. See
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). See also
VAOPGCPREC 16-92.
The veteran claims entitlement to service connection for
bilateral hearing loss and bilateral tinnitus. A veteran is
entitled to service connection for a disability resulting
from a disease or injury incurred in or aggravated in the
line of duty while in the active military, naval, or air
service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp.
2002); 38 C.F.R. § 3.303 (2002). The mere fact of an in-
service injury is not enough; there must be evidence of a
chronic disability resulting from that injury. If there is
no evidence of a chronic condition during service, or an
applicable presumption period, then a showing of continuity
of symptomatology after service is required to support the
claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic
condition must be medical, unless it relates to a condition
to which lay observation is competent. See Savage v. Gober
10 Vet. App. 488, 495-498 (1997). If service connection is
established by continuity of symptomatology, there must be
medical evidence that relates a current condition to that
symptomatology. Id.
The evidence of record consists of the veteran's service
medical records. The Board, as noted earlier, points out
that the veteran failed to submit any additional medical
evidence.
According to an April 1946 Report of Physical Examination of
Enlisted Personnel Prior to Discharge, Release from Active
Duty or Retirement, the veteran denied having any injuries or
diseases. Examination of his ears was negative for any
abnormalities. Hearing was 15 out of 15 bilaterally,
according to whispered voice testing.
According to the veteran's Report of Physical Examination and
Induction, dated April 1946, physical examination of the
veteran's ears was normal and the veteran's hearing was 15
out of 15 bilaterally.
An August 1947 Report of Physical Examination of Enlisted
Personnel Prior to Discharge, Release from Active Duty or
Retirement indicates that the veteran denied any injuries or
diseases. Physical examination was negative for
abnormalities of the ears. Whispered voice hearing test
results were 15 out of 15 bilaterally.
As mentioned earlier, the veteran claims entitlement to
service connection for bilateral hearing loss and tinnitus.
An award of service connection requires that the veteran
incur a disease or disability during service. See
38 U.S.C.A. §§ 1110, 1131. Based on the foregoing medical
evidence and the entire record, the Board finds that the
preponderance of the evidence is against claims for service
connection for bilateral hearing loss and tinnitus.
In order to consider the veteran's hearing impaired, he must
meet the requirements of 38 C.F.R. § 3.385. Under 38 C.F.R.
§ 3.385, impaired hearing will be considered to be a
disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of the frequencies 500, 1000, 2000, 3000, or 4000
Hertz are 26 decibels or greater; or when speech recognition
scores using the Maryland CNC Test are less than 94 percent.
See Hensley v. Brown, 5 Vet. App. 155, 159 (1993)
("[§ 3.385] operates to establish when a measured hearing
loss is . . . a 'disability' for which compensation may be
paid, provided that the requirements for service connection
are otherwise met . . . .").
The Board observes that a review of the veteran's service
medical records does not indicate whether the veteran meets
the requirements of 38 C.F.R. § 3.385. Nonetheless, the
veteran's service medical records, inasmuch as they are the
sole source of medical evidence, are negative for any
diseases or injuries of the ear and otherwise demonstrate
normal hearing. See 38 C.F.R. § 3.303(a) (service connection
requires that the facts "affirmatively [show] inception or
aggravation . . . ."). Moreover, a determination as to
whether the veteran met the criteria under 38 C.F.R. § 3.385
could not be made due to the veteran's failure to submit
medical evidence indicating that the veteran currently has
hearing loss and any association or relationship between any
hearing loss and his military service. Thus, "[i]n the
absence of proof of present disability there can be no valid
claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992). It is also noteworthy that there is no evidence that
the veteran ever sought treatment for bilateral hearing loss,
and that the veteran does not allege any such treatment.
Likewise, the veteran has not provided any evidence, other
than his claim, linking his bilateral hearing loss, if any,
to his active service. A causal link between the veteran's
current bilateral hearing loss and his service has not been
established, and because the veteran is a layperson without
medical training or expertise, his contentions do not
constitute competent medical evidence. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that lay
persons are not competent to offer medical opinions or
evidence of causation, as it requires medical knowledge).
Accordingly, the Board finds that the veteran is not entitled
to service connection for bilateral hearing loss as there is
no current disability upon which to base an award of service
connection. See 38 U.S.C.A. § 5103A(d) (VA does not have an
affirmative duty to obtain an examination of a claimant or a
medical opinion from Department healthcare facilities if the
evidence of record contains adequate evidence to decide a
claim).
In addition, the Board finds that the veteran is not entitled
to service connection for tinnitus, as the record is negative
for evidence that the veteran's tinnitus was incurred during
his service. The medical evidence does not support a causal
relationship between the veteran's treatment for ear disease
and his tinnitus, inasmuch as the veteran's service medical
records are entirely negative for complaints, treatment, or
diagnoses of tinnitus. Similarly, the Board notes that, due
to the veteran's failure to identify or submit any medical
evidence, there is no current medical evidence of tinnitus.
See Savage, supra (requiring medical evidence of chronicity
and continuity of symptomatology). Furthermore, the only
evidence of record linking the veteran's tinnitus, if any, to
his service is his claim. See Espiritu, supra. As such, the
Board finds that the veteran is not entitled to service
connection for his tinnitus, as there is no evidence of a
current disability upon which to base an award of service
connection. See Brammer at 225 ("Congress specifically
limits entitlement to service-connected disease or injury to
cases where such incidents have resulted in a disability.").
See also 38 U.S.C.A. § 5103A(d).
Therefore, the Board finds that the preponderance of the
evidence weighs against the veteran's claims of service
connection for bilateral hearing loss and tinnitus. As there
is not an approximate balance of positive and negative
evidence regarding the merits of the veteran's claim that
would give rise to a reasonable doubt in favor of the
veteran, the provisions of 38 U.S.C.A. § 5107(b), as amended,
are not applicable, and the appeal is denied.
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for bilateral tinnitus is denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.